Sean M. Berry v. Michael J. Astrue
Filing
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MEMORANDUM AND ORDER by Magistrate Judge Andrew J. Wistrich. A court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all of the circumstances, this action is dismissed with prejudice. IT IS SO ORDERED. (mz)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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SEAN M. BERRY,
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Plaintiff,
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v.
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CAROLYN W. COLVIN1,
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Acting Commissioner of Social Security, )
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Defendant.
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____________________________________)
No. SACV 12-2104 AJW
MEMORANDUM AND ORDER
Fed. R. Civ. P. 41(b)
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Proceedings
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On December 5, 2012, plaintiff, through his counsel of record, filed this action for judicial review.
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A Case Management Order (“CMO”) was filed on December 6, 2012. The parties consented to proceed
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before the undersigned magistrate judge for all purposes.
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On April 16, 2013, an order was filed granting plaintiff’s counsel’s motion to withdraw as attorney
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of record and extending the case management deadlines in the CMO. That order advised plaintiff that he
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is now proceeding pro se in this action and therefore is responsible for prosecuting this
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action in compliance with all applicable court orders and procedural rules. See C.D. Cal.
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Local R. 83-2.10.3 (“Compliance With Federal Rules. Any person appearing pro se will be
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required to comply with these Local Rules, and with the F.R.Civ.P., F.R.Crim.P., F.R.Evid.
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Carolyn W. Colvin is substituted for her predecessor in office, Michael J. Astrue. See Fed.
R. Civ. P. 25(d).
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and F.R.App.P.”). Failure to do so may lead to dismissal of this action. See C.D. Cal. Local
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R. 83-2.10.4 (a pro se litigant’s failure to comply with the local and federal rules may be
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ground for dismissal or judgment by default); see also Fed. R. Civ. P. 41(b) (authorizing
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dismissal of an action for failure to prosecute or to comply with the federal rules or a court
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order).
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[Order filed Apr. 16, 2013]. Plaintiff was instructed on how to request substitution of counsel and was
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warned that “any request for substitution should be filed well in advance of any pending case management
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deadlines. Those deadlines will not be extended solely because plaintiff files a request for substitution of
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attorney or is proceeding without an attorney.” [Order filed Apr. 16, 2013]. Plaintiff has not filed a request
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for substitution of counsel.
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On August 5, 2013, defendant filed a “Notice of Non-Receipt of Plaintiff’s Initial Portion of Joint
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Stipulation and Declaration” (“Notice and Declaration”) stating that plaintiff did not provide his initial
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portion of the joint stipulation to defendant by the July 11, 2013 deadline. Defendant’s Assistant Regional
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Counsel, Asim Modi, phoned plaintiff and his mother on July 16, 2013, but was unable to reach plaintiff
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by telephone or voice-mail. On July 18, 2013, Mr. Modi wrote plaintiff a letter inquiring about the status
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of plaintiff’s initial portion of the joint stipulation and asking whether plaintiff wished to obtain an extension
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of the briefing schedule. Plaintiff’s mother acknowledged receipt of the letter, but plaintiff did not respond
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to it, nor has plaintiff since provided his initial portion of the joint stipulation. [Notice and Declaration 2].
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Discussion
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A district court's authority to dismiss a litigant’s action for failure to prosecute or to comply with
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court orders is well-established. See Fed. R. Civ. P. 41(b)2; Link v. Wabash R.R. Co., 370 U.S. 626, 629-
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Rule 41(b) states:
Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule--except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19--operates as
an adjudication on the merits.
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630 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992). “The
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power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending
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cases and to avoid congestion in the calendar of the District Courts.” Link, 370 U.S. at 629-630.
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In determining whether to dismiss a case for failure to prosecute or failure to comply with court
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orders, a district court should consider the following five factors: “(1) the public's interest in expeditious
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resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants;
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(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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sanctions.” In re Phenylpropanolamine (PPA) Prod. Liability Litig., 460 F.3d 1217, 1226-1228, 1234-1252
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(9th Cir. 2006) (discussing and applying those factors). Regardless of whether a litigant's conduct is most
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properly characterized as a failure to prosecute or as a failure to comply with orders, the applicable standard
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is the same. See, e.g., Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (failure to
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prosecute), cert. denied, 523 U.S. 1007 (2001); Ferdik, 963 F.2d at 1260-1261 (failure to comply with
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orders).
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The first factor—the public's interest in the expeditious resolution of litigation—“always favors
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dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting Yourish v. California
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Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), cert. denied, 538 U.S. 909 (2003); see In re PPA Prod.
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Liability Litig., 460 F.3d at 1234 (“[D]ismissal serves the public interest in expeditious resolution of
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litigation as well as the court's need to manage the docket when a plaintiff's noncompliance has caused the
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action to come to a halt, thereby allowing the plaintiff, rather than the court, to control the pace of the
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docket.”).
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The second factor—the court’s need to manage its docket—also favors dismissal. Computer Task
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Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (“Where a court order is violated, the first and
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second factors will favor sanctions . . . .”); see Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-1066 (9th
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Cir. 2004) (noting that “resources continue to be consumed by a case sitting idly on the court’s docket”).
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The third factor—prejudice to defendants or respondents—also weighs in favor of dismissal. In the
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absence of a showing to the contrary, prejudice to the defendants or respondents is presumed from
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unreasonable delay. In re Eisen, 31 F.3d 1447, 1452-1453 (9th Cir. 1994) (citing Anderson v. Air West,
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Inc., 542 F.2d 522, 524 (9th Cir. 1976)).
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The fourth factor—the availability of less drastic sanctions—also supports dismissal. Plaintiff was
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warned that his failure to prosecute this action in compliance with the applicable court orders and rules
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could result in dismissal, and that the case management deadlines would not be extended merely because
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he was proceeding pro se. After plaintiff failed to timely provide his initial portion fo the joint stipulation,
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defendants attempted to obtain his compliance informally, without success See In re PPA Prod. Liability
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Litig., 460 F.3d at 1229 (explaining that “[w]arning [the plaintiff] that failure to obey a court order will
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result in dismissal can itself meet the ‘consideration of alternatives’ requirement.”); Anderson, 542 F.2d at
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525 (“There is no requirement that every single alternative remedy be examined by the court before the
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sanction of dismissal is appropriate. The reasonable exploration of possible and meaningful alternatives
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is all that is required.”).
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The fifth factor—the public policy favoring disposition of cases on their merits—weighs against
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dismissal, as it always does. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (citing Hernandez v.
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City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)), cert. denied, 538 U.S. 909 (2003). Despite the policy
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favoring disposition on the merits, however, it remains a litigant's responsibility to comply with orders
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issued by the court, “to move towards that disposition at a reasonable pace, and to refrain from dilatory and
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evasive tactics.” In re Eisen, 31 F.3d at 1454 (quoting Morris v. Morgan Stanley & Co., 942 F.2d 648, 652
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(9th Cir. 1991)). Plaintiff has not fulfilled that obligation.
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The five-factor test is a disjunctive balancing test, so not all five factors must support dismissal. See
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Valley Eng’rs Inc. v. Electric Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (noting that the five-factor
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test “amounts to a way for a district judge to think about what to do, not a series of conditions precedent”
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to dismissal), cert. denied, 526 U.S. 1064 (1999); Hernandez, 138 F.3d at 399 (explaining that dismissal is
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appropriate when four factors support dismissal or where three factors “strongly” support dismissal).
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Prior to dismissal on the court's own motion, however, a pro se plaintiff should be notified of the
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basis for dismissal and warned that dismissal is imminent. See Ferdik, 963 F.2d at 1262; West Coast
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Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). That requirement has been met.
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Conclusion
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A court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R.
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Civ. P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all of the
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circumstances, this action is dismissed with prejudice.
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IT IS SO ORDERED.
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August 12, 2013
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_______________________
ANDREW J. WISTRICH
United States Magistrate Judge
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